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ASQUITH v. VOLUNTEERS OF AMERICA

March 20, 1998

WILLIAM EUGENE ASQUITH, Plaintiff,
v.
VOLUNTEERS OF AMERICA, WILLIAM H. FAUVER, DOROTHY KELLER and KEN SAVKO, Defendants.



The opinion of the court was delivered by: IRENAS

OPINION

 IRENAS, District Judge:

 This matter comes before this Court on the parties' cross motions for summary judgment as to whether plaintiff William Asquith's due process rights were violated when he was terminated from a New Jersey Department of Corrections community work release program despite a finding that he was not guilty of the disciplinary infraction that had led to his initial removal from the program. This Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the reasons set forth below, this Court holds that plaintiff did not have a protected liberty interest in continued participation in his work release program. This Court also finds that Asquith was not deprived of personal property in violation of the Constitution.

 I. BACKGROUND

 A. Facts

 The material facts in this case are undisputed. Plaintiff William Asquith began serving a five-year term of imprisonment under the custody of the New Jersey Department of Corrections ("DOC") for possession of cocaine with intent to distribute on October 1, 1993. In the Summer of 1994, Asquith began participating in a New Jersey Residential Community Release Agreement Program ("the program," "the work release program"). At all times relevant to this case, the terms and conditions of inmates' participation in the program were governed by the regulations set forth in N.J.A.C. 10A:20-4.1 to 10A:20-4.46. *fn1"

 Pursuant to the terms of the program, Asquith lived in a halfway house in Camden run by Volunteers of America ("VOA"). Inmates in the work release program were required to have a job or to attend school. Asquith worked as a maintenance mechanic at Cramer Hill Apartments, in the Cramer Hill section of Camden. In addition to being permitted to leave their halfway houses for work or school, inmates in the work release program could obtain passes to visit family, shop, eat at restaurants or go to the local YMCA, but only with specific passes obtained for each such outing.

 On Friday, October 28, 1994, Asquith signed in at the front desk of VOA at approximately 7:30 p.m.. VOA case aides Chris Arroyo and Ed McNair approached Asquith. McNair told Asquith to remain where he was. McNair administered a breathalyser test to Asquith and then told him to go to his room. Asquith has testified that McNair behaved suspiciously during these events, stating at one point: "Who do we want to send back, a black guy or a cracker today." (Dep. of William Asquith at 52). Asquith believed he was being set up for a return to a correctional facility. Shortly after Asquith returned to his room, officers from Riverfront Prison ("Riverfront") arrived to take Asquith to Riverfront based on Asquith's reported use of alcohol, a "major violation" under New Jersey Regulations warranting termination from the program. *fn2" Asquith was placed in pre-hearing detention at Riverfront.

 On October 31, 1994, Department of Corrections ("DOC") adjudication officer Kathy Ireland held a hearing regarding the alcohol charge against Asquith. The purpose of the hearing was to determine whether Asquith was guilty of a major violation and thus subject to disciplinary action, not to determine whether he could return to VOA. The evidence before Ireland was as follows. Arroyo's and McNair's reports stated that Asquith had glassy eyes and had smelled of alcohol and that Asquith's breathalyser test had been positive. One Riverfront officer involved in the pick-up and transfer of Asquith reported that Asquith had walked with a stagger and had smelled of alcohol. Other Riverfront officers said Asquith had not appeared to be intoxicated. See Written Reports of Beverly, Danforth, Ealy, Molock, and Renshaw, Cert. of Stephen M. Latimer, Ex. I, at D125-30. *fn3" A Riverfront doctor who had examined Asquith upon his arrival at the prison reported that he had not appeared to be intoxicated. See Medical Reports, Cert. of Latimer, Ex. I at D121, 124. Asquith denied having been drinking. Noting the conflicting evidence and giving Asquith the "benefit of [the] doubt," Ireland found Asquith "not guilty." Adjudication of Disciplinary Charge, Cert. of Latimer, Ex. I at D119-20.

 Asquith was not returned to VOA. He remained at Riverfront for approximately one week before being transferred to Bayside Prison ("Bayside"). Upon his arrival at Bayside, Asquith was placed in maximum custody. Some time after November 28, 1994, his custody status was changed to full minimum. According to Asquith, he "asked everyone" if he could go back to the halfway house. He contacted prison administrators and the community release coordinator about returning to work release. The essence of the response he received was that he would have to reapply to the program and wait to be considered like any other inmate applying for program participation. There simply was no procedure for returning an inmate to the program when he was found not guilty of the violation that prompted his removal. *fn4" There is a high rate of turnover in the halfway houses, the Department of Corrections pays contracting agencies such as VOA for all spaces in the halfway houses regardless of whether the spaces are occupied, and available spaces are filled right away with inmates from the program's waiting list.

 Asquith also sought the return of certain property he had left at VOA. He received some but not all of his belongings. Asquith remained imprisoned at Bayside until he was paroled on January 3, 1995.

 B. Procedural History

 Asquith filed a section 1983 complaint -- dated December 1, 1994 -- on January 11, 1995. The complaint named William H. Fauver, former Commissioner of the DOC, and Dorothy Keller, Chief of the Bureau of Contract Administration for the DOC *fn5" (collectively, "the DOC defendants"). It also named Ken Savko, Director of VOA; Robert Gregory, a VOA Case Manager who was on the scene during a portion of Asquith's interaction with McNair and Arroyo; VOA as a corporation; and Arroyo and McNair (collectively, "the VOA defendants").

 The legal substance of Asquith's complaint is that he was entitled to return to the work release program after he was found not guilty of an alcohol violation. Put differently, he claims he could not be terminated from the program absent due process and a finding that he had committed a major violation. Asquith's post-complaint submissions make it clear that his claim is that he was entitled to due process before any decision not to send him back to the work release program could be made and implemented. Thus, although it is clear that he objects to McNair and Arroyo's conduct leading to his initial removal from VOA, Asquith is not understood by this Court to be actively pressing a claim that his initial transfer to Riverfront for pre-hearing detention violated his due process rights.

 Asquith's complaint alleges that he suffered damages in the form of lost personal property -- including work tools worth $ 3,000 -- lost program privileges, lost employment, two lost civil service "job bids," a missed opportunity to take the November 11, 1994, board of electricians examination, lost vocational and rehabilitative services and lost wages. His complaint also states that as a result of his charged alcohol violation "Plaintiff may receive a new Parole ineligibility date of up to and beyond twelve months." To the extent that Asquith sought injunctive relief in addition to monetary damages, this prayer for relief has become moot. *fn6"

 By Order entered January 11, 1995, this Court granted Asquith's application to proceed in forma pauperis and dismissed his complaint as frivolous. Asquith appealed. By Bench Opinion and Order dated March 22, 1996, the Third Circuit Court of Appeals vacated the order of dismissal and remanded the case to this Court for "development of a record as to the existence of a liberty interest under the due process clause itself." *fn7" Now before this Court are the respective cross motions for summary judgment filed by Asquith, Savko and VOA, and the DOC defendants. *fn8"

 II. SUMMARY JUDGMENT STANDARD

 Under Federal Rule of Civil Procedure 56(c), "summary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)).

 In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 The substantive law governing the dispute will determine which facts are material, and only disputes over those facts "that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. Where the moving party has carried its initial burden of demonstrating the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Idus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). A genuine issue for trial does not exist "unless the party opposing the motion can adduce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir. 1987) (Becker, J., concurring). If the non-moving party's evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See Bixler v. Central Pa. Teamsters Health & Welfare Fund, 12 F.3d 1292 (3d Cir. 1993); Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890-91 (3d Cir. 1992).

 III. DISCUSSION

 Asquith has brought suit pursuant to 42 U.S.C. § 1983, alleging that defendants deprived him of his Fourteenth Amendment right to due process of law. As noted above, this Court does not understand Asquith to be claiming at this point that he was entitled to due process prior to his initial removal from VOA. Such a claim would likely be rejected outright. The central claim pressed by Asquith is that defendants deprived him of a protected liberty interest when, without giving him any kind of hearing and without finding him guilty of an infraction, they failed to return him to his work release program. *fn9"

 A. Constitutionally-Created Protected Liberty Interest

 The Due Process Clause of the Fourteenth Amendment provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. "Liberty interests protected by the Fourteenth Amendment may arise from two sources -- the Due Process Clause itself and the laws of the States." Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983) (citing Meachum v. Fano, 427 U.S. 215, 223-27, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976)). Plaintiff asserts that he possessed a protected liberty interest in remaining in the work release program which was created by the Constitution itself.

 The Supreme Court has recognized that, in certain circumstances, the Constitution itself may give rise to a protected liberty interest. See, e.g., Washington v. Harper, 494 U.S. 210, 221, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990) (inmate "possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause"); Youngberg v. Romeo, 457 U.S. 307, 316, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) ("'liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.'" (quoting Greenholtz v. Inmates of the Neb. Penal and Correctional Complex, 442 U.S. 1, 18, 60 L. Ed. 2d 668, 99 S. Ct. 2100 (1979) (Powell, J., concurring in part and dissenting in part)); Vitek v. Jones, 445 U.S. 480, 491-94, 63 L. Ed. 2d 552, 100 S. Ct. 1254 (1980) (protected liberty interest in not being transferred from prison to mental hospital); Parham v. J.R., 442 U.S. 584, 600, 61 L. Ed. 2d 101, 99 ...


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